POLICE ACADEMY

715 McBride Blvd. New Westminster B.C. V3L 5T4

IN SERVICE:10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers across British Columbia.

IN MEMORIAL
On September 15, 2005, 41
year old Niagara Regional
Police Service Constable
Daniel
Rathonyi
was
participating in a fitness
appraisal to become a
member of the Emergency Task Force Unit.
After finishing the test, he collapsed. Other
officers tried to give him first aid but were
unsuccessful.
Constable Rathonyi began his career with the
Niagara
Regional
Police
Service in 2000 and was
currently assigned to Uniform
Patrol duties in Niagara Falls.
He is survived by his wife, son
and daughter.
On November 5, 2005, two Wildlife Protection
Officers and an experienced pilot died when
their plane crashed. Wildlife Protection Officer
Nicolas Rochette and Wildlife Protection
Officer Fernand Vachon, along with the pilot
Yves Giguère, were conducting a night-hunting
operation in the Chaudière-Appalaches area
(approximately 30 miles north of the U.S.
border) when the crash occurred.
Wildlife Protection Officer Nicolas Rochette
began his wildlife protection career in
Forestville. In 1997 he was
appointed wildlife protection
officer for Laurier-Station
and Saint-Camille. He took his
career very seriously, and was
a guest on the Radio Canada

Volume 5 Issue 6
November/December 2005

program Justice, which examined the duties of
wildlife protection officers. His concern for the
human aspects of his job also led him to accept a
position as union representative. Working in the
Chaudière - Appalaches region, Wildlife
Protection Officer Rochette frequently took
part in aerial surveillance of night-time whitetailed deer hunting and his efforts were greatly
appreciated. Over the years he was involved in
numerous poaching prevention initiatives and was
known for his sense of initiative and
productivity. He is survived by his daughter.
Wildlife Protection Officer Fernand Vachon
first became a wildlife protection officer in
1972. He was appointed Wildlife Protection
Office unit commander for Thetford-Mines and
Laurier-Station in 2000 and went on to develop
new working methods as well as an innovative
approach to the poaching of white-tailed deer
involving a combination of ground work and aerial
patrols. Wildlife Protection Officer Vachon was
known for his expertise, professionalism, and
persistence. He was an inspiration to his
colleagues from Québec in the battle against
poaching. Wildlife protection
was his passion, and he devoted
33 years of his life to the
cause with the enthusiasm and
commitment that were his
trademark.
The preceding information was provided with the
permission of the Officer Down Memorial Page:
available at www.odmp.org/Canada

“They are our heroes,
We shall not forget them”

Be Smart and Stay Safe

HIGHLIGHTS IN THIS ISSUE
Pg.
5

Strip Search of ‘Short Term’ Detainee
Unreasonable
Grounds for Arrest Viewed Cumulatively, not
Separately

6

Valid Detention Based on Compelling
Cumulative Factors

8

Detainee Must be Diligent or Police May
Proceed With Breath Tests

9

No Guilty Inference From Exercising Right to
Silence

11

Grounds for Impairment ‘Blindingly’ Obvious

14

Pre-Charge Conduct Admissible in Criminal
Harassment Case

15

Pat Down Search of Detainee Reasonable

16

Fingerprint not Enough

17

2006 Police Leadership Conference
20
Unless otherwise noted, all articles are authored by Sgt.
Mike Novakowski, MA (Abbotsford Police). The articles
contained herein are provided for information purposes
only and are not to be construed as legal or other
professional advice. The opinions expressed are not
necessarily the opinions of the Justice Institute of British
Columbia. “In Service: 10-8” welcomes your comments
on or contributions to this newsletter. If you would like to
be added to our electronic distribution list e-mail Mike
Novakowski at mnovakowski@jibc.bc.ca
National Library of Canada Cataloguing in
Publication Data
Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police officers
across British Columbia."
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2. Police –
Legal status, laws, etc. – Canada – Cases – Periodicals. I.
Justice Institute of British Columbia. Police Academy. II.
Title: In service, 10-8. III. Title: In service, ten - eight.

2

‘IN SERVICE: 10-8’
e-LETTERS TO THE EDITOR
“I
miss
getting
the
newsletter
since
I
graduated from the JI in
January 2004. I go on-line
occasionally and read it but I
would like to get it at work...[T]he rest of my
squad would like to read it also and I can make
copies of it there. Thanks very much, it is a very
informative read and a good way to stay up
to date"—Police Constable, British Columbia

************

“The edition of your latest newsletter (Volume 5,
Issue 5) was just forwarded to me by a…
constable. I found the information well put
together and easy to read. Great job!”—Police
Sergeant, Alberta

************

“I’m a Sergeant…and read your newsletter. It
was extremely informative and would like to be
on your mailing list”—Police Sergeant, Alberta

************

“I was hoping that you could add me to your
distribution list for your newsletter. The
articles are excellent tools for any police officer
to stay up to date on current legislation. I
appreciate the quality of your work and look
forward to future readings”—Police Constable,
Alberta

************

“I have never seen this publication before and I
noted several very informative cases and would
ask that you place me on your electronic
distribution list so that I can share [In] Service
10-8 with the other members of our unit”—RCMP
Corporal, British Columbia

“Love

your

************

newsletter”—RCMP

British Columbia

Constable,

************

“I find your publication extremely informative
and practical for operational members. Thank
you”—RCMP Corporal, British Columbia

www.jibc.bc.ca

Volume 5 Issue 6
November/December 2005

All past editions of this
newsletter are available online
by clicking on the Police
Academy link at:

www.jibc.bc.ca

DESTROYED DISC BREACHES
DISCLOSURE RULES
R. v. Forster et al, 2005 SKCA 107
A police officer conducted a drug
investigation using confidential
informants, electrical consumption
records, infrared imaging, drivebys and other information to build his grounds for
a search warrant. His many observations were
committed to memory or written on his hands or
scraps of paper and then were edited and
recorded onto a computer disc. This information
then formed the contents of the information to
obtain the search warrant. The computer disc and
all of the original notes and source information
were destroyed by the officer except those
related to the execution of the search warrant.
This left the entire original record of the six to
seven month investigation destroyed after the
officer used its contents to draft the information
to obtain.
The three accused were charged with growing
marihuana and possession for the purpose of
trafficking. The Crown disclosed the notes made
during the execution of the warrant and a copy
of the information to obtain, which had
information blacked out to protect the identity
of the confidential informants. At the beginning
of the trial in Saskatchewan Provincial Court
the charges were stayed because the officer
destroyed the source material and computer
disc which breached the Crown’s duty in
preserving material produced during the
investigation. The Crown appealed to the
Saskatchewan Court of Appeal.
Non disclosure of evidence can result in such
prejudice to an accused that their s.7 Charter

Volume 5 Issue 6
November/December 2005

right to full answer and defence, a principle of
fundamental justice, will be violated. In
determining whether a s.7 breach has occurred
from the destruction of documents, a two prong
enquiry will be undertaken. First, were the
destroyed notes and disc relevant evidence. And
second, if the evidence was relevant, did the
Crown fail to meet its obligation to preserve
that evidence.
In this case Justice Sherstobitoff, writing the
judgment of the court, concluded that both
branches of the test had been met. In ruling on
the first branch, whether the destroyed
material was relevant evidence, he wrote:
While the officer swore that everything on
the disc was contained in the Information, it is
obvious that the conversion of that
information from the form of entries made
from time to time over a period of many
months into the form of an Information to
Obtain a Search Warrant involved not only
reorganizing, rewording and editing all of the
material, but, almost certainly, some selection
and discarding of material that was, in the
opinion of the officer, not significant or
useful.
These processes would, in all
likelihood, put all of the information in the
very best light for the Crown in its application
for the search warrant, as opposed to its
original form, and would tend to minimize the
aspects unfavourable to the success of the
application. They would have certainly changed
the form of the content of the disc, and very
probably, to some degree, also the substance
of the content of the disc. Those changes
could have been of use to the defence.
In addition, it must be borne in mind that
there were two kinds of notes destroyed:
those written on his hand or on scraps of
paper, and those on the disc. We do not know
what sort of editing or copying was done in
transferring the information from the first
kind of notes to the disc. The transcript is
silent in this respect as none of the counsel
asked about the process, but it is self-evident
from an examination of the Information that it
does not merely reflect the unedited and
unchanged content of the sorts of notes that

www.jibc.bc.ca

3

would be written on a scrap of paper or on a
hand.
There are many uses to which the destroyed
notes and the original content of the disc as
well as the changes between that content and
the content of the Information to Obtain a
Search Warrant could have been put to by the
defence at trial. The credibility of [the
officer] would be important at a trial since it
was his sworn evidence that obtained the
search warrant and it was the search warrant
that uncovered the evidence to support the
prosecution. The information on the disc in its
original form would be invaluable in any attack
on the validity of the search warrant. If
there were inconsistencies between the notes,
the content of the disc, the Information, or
the constable’s evidence on a voir dire, or at
trial, his credibility could have been
challenged. This is a frequent and necessary
use of police notes and often the only
effective way to test the credibility of a
police witness. The defence in this case has
been deprived of all that.
We must conclude that it was open to the trial
judge in this case to find, as she impliedly did,
that the destroyed notes and the disc
contained material which the defence could
have used even though it is difficult to specify
the precise manner in which the information
could have been used without knowing the
exact content of the disc…Given the broad
scope of the material, and its importance to
the prosecution of the case, it was material
that should have been available to the defence.
[references omitted, paras. 26-29]

As for the second branch, whether the officer
failed to meet his obligation in preserving the
evidence, Justice Sherstobitoff stated:
The next question is whether [the officer]
failed in his obligation to preserve relevant
evidence. In this case, the disc in question was
deliberately destroyed in order to protect the
identity of confidential informants. Since the
disc served as [the officer’s] notebook
respecting his entire investigation of this
matter, it amounted to destruction of his
notebook. Curiously, although the constable

4

was examined or cross-examined by four
separate counsel, none asked him if he was
aware of the duty of the Crown and its
representatives to preserve all relevant
material for the purpose of disclosure to the
defence, and in particular, notes of the
investigation. It is hard to believe that in the
decade or so since Stinchcombe any police
officer could be unaware of the duty to
preserve his notes. Nor did any counsel ask
the officer why, in order to protect the
identity of the informants, the content of the
disc could not have been transcribed with
confidential portions omitted (as was done
with the Information to Obtain a Search
Warrant). Nor was he asked why it was not
left to Crown counsel or the judge to decide
whether or what part of the contents of the
disc should be disclosed to the defence in
order to comply with the rules of privilege
respecting informants. Since these questions
remain unanswered, and [the officer’s]
evidence was taken by all to be credible, we
must assume that his motive in destroying the
disc was his stated motive, and not an
improper one, and that he believed that he had
preserved the content of the disc in the
Information to Obtain a Search Warrant. The
innocent motive, in the circumstances of this
case, cannot affect the result.
If the officer knew of his duty to preserve
and produce the disc, he acted in bad faith in
destroying it.…If he did not know of the duty
to preserve and produce the disc, that
amounted to inexcusable negligence… As noted
above, it is almost inconceivable that a police
officer could be unaware of the obligation to
preserve material such as his notes of an
investigation, and the disc in this case,
constituted his notes of the investigation. If
he did not know of his obligation to preserve
evidence, he should have known. [paras. 30-31]

In dismissing the Crown’s appeal and holding that
the trial judge’s granting of a stay of
proceedings was not improper, the court held:
The difficulty in this case is that the
material in issue has been destroyed. It
cannot be recreated. Since it could have
been of use to the defence, the defence has

www.jibc.bc.ca

Volume 5 Issue 6
November/December 2005

been prejudiced by its loss. Accordingly,
both branches of the test are met. The
prejudice caused by the destruction will be
manifested through the trial and its
outcome. Perhaps most importantly, no other
remedy is capable of removing that prejudice.
[para. 33]
Complete case available at www.canlii.org

STRIP SEARCH OF ‘SHORT
TERM’ DETAINEE
UNREASONABLE
Ilnicki v. MacLeod, 2005 ABCA 349
Two police officers attended
the plaintiff’s residence and
arrested him on an outstanding
arrest warrant for no insurance.
The officers had become aware of the arrest
warrant while investigating another matter. The
officers patted down the plaintiff and he later
resisted a strip search at the police station and
was injured when force was applied. He was
taken to the hospital, treated for a sprain and
then taken to the detention centre where he was
held for about 10 minutes before seeing a
justice of the peace. He was released on $250
bail.
The plaintiff sued and the Alberta Court of
Queen’s Bench judge found the defendants
breached the plaintiff’s s.8 Charter rights and
committed a battery in conducting the strip
search. He was awarded $5,000 for the
indignities of the strip search and $6,000 for
the injury. The defendants, however, appealed to
the Alberta Court of Appeal arguing the trial
judge erred by finding the strip search
unreasonable and that an unreasonable amount of
force was used in conducting it.

Unreasonable Search
In R. v. Golden, [2001] 3 S.C.R. 679, the Supreme
Court of Canada recognized that the power to
search as an incident to arrest can include a

Volume 5 Issue 6
November/December 2005

strip search, provided the police have reasonable
grounds to believe it is necessary. In other
words, merely having reasonable grounds to
effect an arrest does not automatically carry
with it the right to strip search. Furthermore,
the Supreme Court outlined a distinction
between a person held in short term detention
from that of a person entering a prison
population. In the latter, the Supreme Court
noted, there was a greater need to ensure no
weapons or illegal drugs are smuggled into the
prison where prisoners often come into contact
with each other. This, it was suggested, may
justify routine strip searches of all prisoners.
However, strip searches of short term detainees
in police custody must be assessed on a case-bycase basis and cannot be carried out routinely.
In this case, the Alberta Court of Appeal agreed
with the trial judge. This was a short term
detention. The Court stated:
In the present case, the [plaintiff] was
arrested on an outstanding warrant related to
a traffic violation. The only purpose in taking
him to the Detention Unit was to bring him
before a justice of the peace so the warrant
could be vacated and the [plaintiff] released
on bail. The police did not intend to oppose
bail. [The officer] testified that if a justice
had been available when they reached the
detention centre, no incarceration would have
been necessary. Even if a justice had not been
available immediately however, any possible
incarceration would have been "short term."
It follows the only reasonable expectation the
arresting officers could have had, at the time
they conducted the strip search, was that the
[plaintiff] would not need to be incarcerated,
or, if he did, it would be for a short time. This
is borne out by the facts of this case. The
[plaintiff] spent only about ten minutes in a
cell before he was taken before the justice of
the peace. He was released within 45 minutes
of entering the detention centre.
The police officers, therefore, were not
entitled to conduct a strip search simply
because there was a possibility the [plaintiff]
would be detained briefly in police cells. This

www.jibc.bc.ca

5

does not mean, as the Supreme Court pointed
out in Golden, that police officers are
prohibited from conducting a strip search if
other circumstances gave them a legitimate
safety concern. But there were no such
concerns in this case. The [plaintiff] was
arrested at his house, in front of his wife and
children, because of an unpaid traffic fine.
When he was arrested, the police had no
apparent reason to suspect he was carrying
either weapons or drugs, and he was under
constant surveillance thereafter. If they were
concerned about their safety, they were
entitled to a "pat down" or " frisk" search as
an incident to arrest.
In fact, they had carried out a pat down
search on arrest.
The only reason the police officers gave for
later conducting the strip search, was that the
[plaintiff] had to go before a justice of the
peace and to do that he would have to go to
the detention centre where he might be placed
in a cell with other detainees. This was not
enough to justify the strip search.[paras. 1519]

Furthermore, it was not a reasonable inference
that even if the plaintiff was to go to the
detention centre that he would come into
contact with another detainee. The officer
testified that because this was a traffic matter
the plaintiff would have been taken to the
justice directly, or if not available, he would have
been placed in a single occupancy cell at the
detention centre. Moreover, even if it was
necessary for the arresting officers to consider
future contact between the plaintiff and other
detainees, they had an obligation to consider
ways of avoiding such contact. By minimizing the
chance of contact the need for a strip search is
also minimized.
Two alternatives the Court suggested of avoiding
contact were:
1. the police could have contacted the detention
centre before conducting the strip search to
determine whether a justice was immediately
available;

6

2. the police could have contacted the detention
centre before conducting the strip search to
determine whether there were single
occupancy cells available. If there were not,
and the plaintiff would have been detained in
the overflow with other prisoners, there were
search facilities in the detention centre to
conduct the strip search.

Unreasonable Force
As for the trial judge’s decision about the
amount of force used in conducting the strip
search, the Court could not say she was clearly
wrong. The court deferred to the trial judge’s
decision finding the police controlled the agenda
and could have tried other techniques to comply
with the strip search—such as warning force
could be used or that the plaintiff would be left
in the search room until he complied or
consulting with a sergeant about other ways of
gaining compliance.
The appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

GROUNDS FOR ARREST
VIEWED CUMULATIVELY, NOT
SEPARATELY
R. v. Bracchi, 2005 BCCA 461
A
police
officer
set
up
surveillance on a mobile home
surrounded by a large wooden
and chain link fence known for
many years to be associated with
cocaine trafficking and colloquially referred to
as “the compound”. He would watch visitors
attend the home (either by vehicle or on foot)
and leave within five minutes. He stopped about
20 vehicles he saw leave the place and seized
cocaine from all but one. He also was inside the
trailer on one occasion and seized an ounce of
cocaine lying on the kitchen counter. The police
also received other reliable information that the
owner of the compound was trafficking in

www.jibc.bc.ca

Volume 5 Issue 6
November/December 2005

cocaine and that the accused was working for
the owner. It was also believed that the cocaine
was packaged in sealed salmon tins.
Police set up surveillance on the accused’s
residence several times. On one occasion they
stopped a young male who had driven up to the
accused’s house, entered, and left a short time
later. Police seized 0.5 grms of cocaine from the
male who told them he bought it from the
accused for $40. The accused then moved to
another house and police continued periodic
surveillance. Two weeks before his arrest, the
accused was seen leave his house, drive
erratically, but he lost the police following him.
They subsequently located him at another
trafficker’s residence and saw him pull into the
driveway and get out of his vehicle. As the police
drove by he turned and walked up the street.
On the day of the accused’s arrest police saw
him leave his residence in his vehicle and drive
three blocks before turning on his lights. He
drove in an unusual, circuitous route, rapidly
accelerating at times. As he approached the
compound, police stopped him, believing he was
probably making a cocaine delivery. He was
arrested for possession of cocaine. In an open
fanny pack on the floor by the driver’s seat
police found 0.5 grms. of cocaine in a clear
plastic baggie and $1,550 in cash. Also located
was a sealed salmon tin under the driver’s seat.
It was opened and found to contain two plastic
baggies of cocaine totaling 55 grms. The accused
was then arrested for possession of cocaine for
the purpose of trafficking. The police seized
the cocaine and cash and continued their search,
finding a cell phone and pager as well as a list,
from the glove compartment, containing licence
plates and descriptions of unmarked police
vehicles and private vehicles belonging to police
members.
At his trial in British Columbia Provincial Court
the accused was acquitted. The trial judge ruled
that the arrest was unlawful because the police
did not have reasonable grounds to effect an

Volume 5 Issue 6
November/December 2005

arrest. He gave no weight to the cocaine found in
the 19 vehicles stopped leaving the compound
and found the accused’s suspicious driving prior
to his arrest insufficient to provide reasonable
grounds. Since the arrest was unlawful, the
resultant search incidental to that unlawful
arrest was unreasonable and a violation of s.8 of
the Charter. As a consequence, the evidence was
excluded under s.24(2).
The Crown appealed to the British Columbia
Court of Appeal arguing the trial judged applied
the reasonable grounds standard incorrectly by
evaluating each factor individually rather than
assessing the totality of the circumstances.
Justice Smith, authoring the unanimous
judgment, agreed. Rather than evaluating each
item of evidence separately, the trial judge
“should
have
determined
whether
the
circumstances upon which the Crown relied as
objective
justification
for
the
arrest,
considered cumulatively, amounted to reasonable
and probable grounds for the arrest.”
In this case, Justice Smith ruled that the police
did have reasonable grounds, both subjectively
and objectively. He stated:
[The officer’s] surveillance observations, his
seizure of cocaine from the kitchen table of
the trailer, and his discovery of cocaine on
several occasions in vehicles leaving the
compound
were
confirmatory
of
the
information received by the police about drug
trafficking generally at [the compound].
The information that the [accused] was
involved in trafficking and was delivering
cocaine to the compound was detailed. It
included names of several individuals involved
and the specific location where the trafficking
was allegedly taking place. It was particular as
to the amounts of cocaine involved and the
novel manner of packaging the cocaine.
Moreover, the information was provided by a
number of sources on an ongoing basis over an
extended period of time. Thus, it was
internally corroborative. One of the sources
was an associate of the Pasanen group who
apparently had direct knowledge of the

www.jibc.bc.ca

7

trafficking and the persons involved. These
factors tend to indicate that the information
was reliable.
As well, the information that the [accused]
was involved in trafficking cocaine was
corroborated by the seizure of cocaine by
[the officer] from a person who had just been
in the [accused’s] house and that person’s
statement that he had purchased the cocaine
from the [accused].
Further, the parallels between the [accused’s]
conduct on the day he travelled to Cumberland
and on the night of his arrest are striking. On
both occasions, he drove in a manner that
would reasonably support a hypothesis that he
was attempting to avoid surveillance. His trip
to Cumberland terminated at the home of a
person known to the police to be a cocaine
trafficker. His trip on the night of his arrest
was terminated by the police just doors away
from the compound…known by the police to be
a place where cocaine was trafficked. The
reputation of these places for drug trafficking
is a relevant circumstance and can be taken
into account…. Thus, there was objective
evidence to reasonably support a hypothesis
that the [accused] was attempting to avoid
surveillance on the night of his arrest because
he had cocaine in his vehicle.
The actions of the [accused] from the time he
entered his vehicle until he was stopped and
arrested were compelling evidence, in light of
the other evidence in possession of the police,
that he was engaged in the commission of an
indictable offence. Considering all of the
circumstances, I think a reasonable person
could reasonably infer that the [accused] was
probably in possession of cocaine that he was
delivering cocaine to the compound…when the
police stopped him and arrested him.
[references omitted, paras. 27-31]

Since the arrest was valid the search that arose
from that arrest was also valid. The appeal was
allowed, the acquittal quashed, and a new trial
was ordered.
Complete case available at www.courts.gov.bc.ca

8

VALID DETENTION BASED ON
COMPELLING CUMULATIVE
FACTORS
R. v. Bui & Vu, 2005 BCCA 482
Police in Vancouver saw the two
accused deplane off a flight
from Toronto. An officer knew
they were previously involved in
transporting contraband and
believed Vu was Bui’s aunt. The officer also
knew that couriers took marihuana from
Vancouver to Toronto, returning with tobacco
products and money. As the accused walked to
the terminal, they stared at the officer
nervously, maintained prolonged eye contact, and
looked back at him over their shoulders. The
accused did not talk to each other and went in
opposite directions once in the terminal. The
officer believed they were pretending not to
know each other. One officer then followed Bui
while a second officer followed Vu.
Both accused were detained and it was
determined that they had arrived from Toronto
that day and were scheduled to return three
days later, a short turnaround consistent with
transporting contraband. After learning from
the airline that neither accused checked in
baggage in Toronto, the investigation changed
from tobacco contraband transport to proceeds
of crime. The accused were moved to a
storefront police office and told they could
contact a lawyer, but they were not formally
advised of their s.10(b) Charter rights. They
both indicated a desire to speak to a lawyer.
Vu was taken to a small office and read her
s.10(b) rights from a card. As she stood up, her
jacket fell open and a currency shaped package
was seen protruding from an inside pocket, while
a contoured lumpiness around her waist was also
observed. She was arrested, searched, and
$83,500 was found. Bui was also taken to an
office and again advised he was being detained
for possession of proceeds of crime and properly

www.jibc.bc.ca

Volume 5 Issue 6
November/December 2005

advised of his s.10(b) rights. Outlines of two
thick bundles could be seen in his pockets. The
officer learned what was found on Vu and then
arrested Bui. He was searched and police found
$13,360 on his person and many open, vacuumsealed plastic bags containing marihuana flakes in
his carry-on bag. Both accused were given access
to a lawyer at the main police station about an
hour after the detentions began because they
could not be afforded privacy at the storefront
office.
At trial in British Columbia Provincial Court the
trial judge concluded that both accused were
validly detained by police because the detentions
were based on articulable cause. Since the
detentions were based on a constellation of
objectively discernible facts, they were not
arbitrary and therefore did not violate s.9 of
the Charter. The money was seen during a lawful
detention and confirmed during a search
incidental to lawful arrest. As for the delay in
accessing counsel, the trial judge ruled that the
police should have given the accused the option
of calling a lawyer without privacy. This violated
the accused’s s.10(b) Charter rights, but the
evidence was admissible under s.24(2). They
were convicted of proceeds of crime offences.
The accused then both appealed to the British
Columbia Court of Appeal arguing, in part, that
the trial judge erred in finding the police had
reasonable grounds to detain them. Since the
detention violated s.9 of the Charter, it was
submitted, the search and money seizure
violated s.8 and should be excluded from
evidence under s.24(2). However, Justice Low,
authoring the unanimous decision, found the trial
judge did not err. The cumulative effect of the
factors considered by the trial judge were
compelling. As for the trial judge’s s.24(2)
Charter analysis and the effect of the s.10(b)
breach on the admission of evidence, there was
no error. The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

Volume 5 Issue 6
November/December 2005

DETAINEE MUST BE DILIGENT
OR POLICE MAY PROCEED
WITH BREATH TESTS
R. v. Jones, 2005 ABCA 289
The accused was arrested for
impaired driving, advised of his
right to counsel, and read the
demand for breath samples. He
said he wanted to speak to
counsel of his choice. At the police station the
accused was taken to a private phone room
containing a phone, phone books, and a list of
lawyers. He was told to knock on the door when
he was done and seven minutes later he did just
that. The officer entered the room and asked
whether the accused had contacted counsel. The
accused said he had not contacted his lawyer so
the officer again told him about legal aid and the
phone book and that he could call another lawyer.
The accused said he only wanted to talk to
counsel of his choice. He did not say he wanted
more time or that he required any assistance. He
was escorted to the breathalyser room and
provided samples of his breath.
At trial in Alberta Provincial Court the judge
found the accused was provided with a
reasonable opportunity to consult counsel, which
he was not reasonably diligent in exercising. The
breathalyser certificate was admitted and the
accused was convicted of over 80mg%. The
accused appealed to the Alberta Court of
Queen’s Bench, but his appeal was dismissed. He
then appealed to the Alberta Court of Appeal
arguing his right to counsel under s.10(b) of the
Charter had been violated because the police
should have asked
BC’s PROPSER WARNING
him why he was not
You have the right to a reasonable
opportunity to contact counsel. I am
able to reach a
obliged not to take a statement from
lawyer, should have
you or to ask you to participate in any
process which could provide
read
a
further
incriminating evidence until you are
caution
(Prosper
certain about whether you wish to
exercise that right. Do you
warning) or at least
understand? What do you wish to do?
asked him if he

www.jibc.bc.ca

9

needed more time, and should
suggested contacting other counsel.

not

have

interference with the [accused’s] right to
privacy in his consultation with counsel.

In dismissing the appeal, Justices McFayden and
Ritter first summarized the duties on the police
with respect to s.10(b) of the Charter. They
wrote:

The [accused] also suggests that the police
officer should have asked him whether he
required further time. However, the police
officer had not interrupted the [accused] nor
had he suggested to him that his time was up.
On the only evidence, the [accused] knocked
on the door because he had terminated his
efforts and was ready to proceed to the next
step. The police officer reasonably concluded
from the [accused’s] actions that the
[accused] had terminated his efforts to try to
call his own lawyer. In the circumstances, an
inquiry about whether the [accused] needed
more time would have been redundant. As he
knew that the [accused] had been unable to
reach his own lawyer, the police officer
reminded the [accused] that he could seek the
assistance of legal aid counsel or other
counsel. The [accused] responded that he did
not wish to do so. We do not agree with the
suggestion of counsel for the [accused] that
the police officer’s attempt to provide
additional information to the [accused]
constituted an improper interference with the
[accused’s] right to consult counsel of his own
choice.

Section 10(b) of the Charter imposes two
duties on police officers. They must inform
the detainee of his right to consult counsel
without delay and of the existence and
availability of legal aid and duty counsel. If the
detained person wishes to consult counsel, the
police must provide a reasonable opportunity
for the detained person to exercise that
right, and refrain from eliciting evidence until
he or she has had that opportunity. Where the
trial judge concludes that a reasonable
opportunity has been provided, the trial judge
must consider whether the detained person
was reasonably diligent in exercising that
opportunity. The burden is on the detainee to
establish reasonable diligence. If the detainee
is unable to reach counsel after reasonably
diligent efforts, then the issue of waiver will
arise and a Prosper warning may be required.
[para. 8]

In finding the police complied with their
responsibilities under s.10(b), the majority held:
Here, the police officer carried out the duties
imposed on him. He did not interrupt the
[accused] in his efforts to reach counsel, nor
did he do anything that interfered with the
[accused’s] exercise of his right to consult his
lawyer. It was the [accused] who terminated
his efforts by knocking on the door, which
signified that he had finished with the phone
room. The only evidence establishes that the
[accused] could have remained in the phone
room had he required further time to contact
his lawyer. He did not suggest that he needed
more time, nor did he ask the police officer to
assist him in reaching his counsel.
Counsel for the [accused] suggests that the
police officer should have questioned the
[accused] regarding the reasons for his
inability to reach counsel. We do not agree.
Such questioning could be viewed as an

10

The [accused] also suggests that an additional
Prosper warning should have been read to the
[accused]. That warning may be required
where the detained person, who has been
reasonably diligent in exercising his right but
has not been successful, subsequently wishes
to waive his right to counsel. It is not
applicable here. [references omitted, paras. 912]

Justice Berger, however, disagreed with his
colleagues. He noted there were two ways a
person can waive their right to counsel after
asserting it:
1)

by
unequivocal
waiver
unambiguous language)

2)

by failing to reasonably pursue the right
to counsel

www.jibc.bc.ca

(clear

and

Volume 5 Issue 6
November/December 2005

In this case, Justice Berger opined that the
police did not provide the accused with a
reasonable opportunity to contact counsel. They
should have clarified the situation before
presenting the accused to the breathalyser. He
stated:
There is…no evidence in the record
establishing that the [accused] accepted the
constable’s edict that a knock on the door
signalled the termination of his efforts to
contact his lawyer of choice. The unilateral
imposition of a presumption of waiver cannot,
in my opinion, operate to deprive an accused of
his right to counsel by equating a knock on the
door with waiver of the right. The Charter
threshold for clear and unequivocal waiver
cannot be displaced by an ambiguous
benchmark imposed by the police. After all, a
knock on the door by a detainee locked in a
telephone room is capable of supporting any
number of alternative explanations.
When asked whether he wanted to contact
another lawyer, the [accused] re-stated his
desire to consult only with [his lawyer]. This
was a reassertion of his continuing intent to
contact his lawyer of choice. The Crown failed
to discharge its burden that the [accused] had
given “a clear indication that he had changed
his mind” and had waived his right to counsel.
The test for waiver…is not made out. It was, in
my opinion, unreasonable for the police to
proceed as if the [accused] (after only seven
minutes in the phone room) had waived his
right to counsel.
………
In the case at bar, the Crown takes the view
that the informational duty to read a “Prosper
warning” only arises where the accused person
no longer wishes to seek the advice of counsel.
The Crown submits that “[a] detainee who has
given no indication that he wishes to waive his
right to counsel [i.e. the [accused]] should not
be read a waiver warning as if he had.”…This
proposition, in my view, must be rejected. If
an informational duty arises after an accused
has sought legal advice and then has changed
his mind (Prosper), why would it not arise in
circumstances where the accused has been
duly diligent in exercising the right to counsel

Volume 5 Issue 6
November/December 2005

of choice and continues to assert his right…?
When first efforts fail, it seems to me
anomalous that in the absence of an express
abandonment of the desire to contact counsel
of choice, the police would be at liberty to
proceed with their investigation without taking
steps to ensure that the accused has genuinely
waived his right to counsel. In the instant
case, the police failed to take such steps.
The Charter protects the least knowledgeable
accused. The contention of the… Crown that
the [accused] was obliged to assert “I want to
try again” is, I suggest, a recipe for a twotiered right to counsel. A knowledgeable
accused might well assert “I want to try
again”. A less sophisticated detainee might
not. That is precisely why, in my opinion, an
informational duty is properly imposed on the
police in the circumstances of this case.
[references omitted, paras. 22-26]

Justice Berger would have allowed the appeal,
quashed the conviction, and entered an
acquittal.
Complete case available at www.albertacourts.ab.ca

NO GUILTY INFERENCE FROM
EXERCISING RIGHT TO
SILENCE
R. v. Turcotte, 2005 SCC 50
The accused attended a police
detachment
and
repeatedly
asked the clerk to send a police
car to the ranch where he lived.
Two police officers took over
from the clerk and the accused again repeatedly
asked that a police car be sent to the ranch, but
would not explain why. He then gave a set of
keys to the police and said they were for a truck
parked outside that had a rifle in it. The accused
was taken to an interview room where he
provided his name and date of birth when asked,
and again made repeated requests that a police
car be sent to the ranch, but refused to explain
why. After police arrived at the ranch they
found three victims that had died from axe

www.jibc.bc.ca

11

wounds to the head. The accused was then
detained and advised of his rights and was later
arrested for the murders.
At trial in the Supreme Court of British
Columbia the Crown characterized the accused’s
silence (refusal to answer questions) at the
police detachment as “consciousness of guilt.”
The trial judge told the jury that the accused’s
refusal to tell the police what was at the ranch
was better characterized as “post-offence
conduct” (behaviour after the crime), which
could, if the jury decided, provide evidence of
guilt. The accused was found guilty on three
counts of second degree murder and sentenced
to life in prison.
The accused appealed to the British Columbia
Court of Appeal and his convictions were set
aside and a new trial was ordered. The unanimous
three member court ruled that the accused’s
silence was irrelevant and could not constitute
evidence that he committed the offences.
Because there was no common law or statutory
rule requiring the accused to answer police
questions, he had the right to remain silent.
The Crown appealed the decision of the British
Columbia Court of Appeal to the Supreme Court
of Canada arguing that the accused’s refusal to
answer some of the police questions could be
relied upon as post-offence conduct from which
an inference of quilt could be drawn. Justice
Abella, authoring the unanimous nine member
judgment, first examined the meaning of “postoffence conduct.” She noted that it is not a
neutral term encompassing all behaviour by an
accused following the commission of a crime, but
rather only conduct probative of guilt, such as
flight from the scene of a crime, attempts to
resist arrest, failure to appear for trial, acts of
concealment like lying, assuming a false name,
changing appearance, or hiding or disposing of
evidence.
In this case, the accused had the right to refuse
to answer police questions. “Absent statutory
compulsion, everyone has the right to be silent in

12

the face of police questioning,” said Justice
Abella. “It would be an illusory right if the
decision not to speak to the police could be used
by the Crown as evidence of guilt.” She further
stated:
Conduct after a crime has been committed is
only admissible as “post-offence conduct”
when it provides circumstantial evidence of
guilt. The necessary relevance is lost if there
is no connection between the conduct and
guilt. The law imposes no duty to speak to or
cooperate with the police. This fact alone
severs any link between silence and guilt.
Silence in the face of police questioning will,
therefore, rarely be admissible as postoffence conduct because it is rarely
probative of guilt. Refusing to do what one
has a right to refuse to do reveals nothing.
An inference of guilt cannot logically or
morally emerge from the exercise of a
protected right. Using silence as evidence of
guilt artificially creates a duty, despite a
right to the contrary, to answer all police
questions.
Since there was no duty on [the accused’s]
part to speak to the police, his failure to do
so was irrelevant; because it was irrelevant,
no rational conclusion about guilt or innocence
can be drawn from it; and because it was not
probative of guilt, it could not be
characterized for the jury as “post-offence
conduct”. [paras. 55-56]

The Crown also argued that the right to silence
is only engaged when the accused is under the
power of the state (such as detention or arrest),
and if not, the right has no relevance. In
rejecting this submission, Justice Abella wrote:
In general, absent a statutory requirement to
the contrary, individuals have the right to
choose whether to speak to the police, even if
they are not detained or arrested. The
common law right to silence exists at all
times against the state, whether or not the
person asserting it is within its power or
control. Like the confessions rule, an
accused’s right to silence applies any time he
or she interacts with a person in authority,

www.jibc.bc.ca

Volume 5 Issue 6
November/December 2005

whether detained or not. It is a right
premised on an individual’s freedom to choose
the extent of his or her cooperation with the
police, and is animated by a recognition of the
potentially coercive impact of the state’s
authority and a concern that individuals not
be required to incriminate themselves. These
policy considerations exist both before and
after arrest or detention. There is, as a
result, no principled basis for failing to
extend the common law right to silence to
both periods.
Nor do I share the Crown’s view that by
attending at the detachment and answering
some of the police’s questions, [the accused]
waived any right he might otherwise have
had. A willingness to impart some information
to the police does not completely submerge an
individual’s right not to respond to police
questioning. He or she need not be mute to
reflect an intention to invoke it. An individual
can provide some, none, or all of the
information he or she has. A voluntary
interaction with the police, even one initiated
by an individual, does not constitute a waiver
of the right to silence. The right to choose
whether to speak is retained throughout the
interaction. [paras. 51-52]

The accused’s behaviour at the police
detachment, albeit not admissible as post
offence conduct, was nonetheless admissible as
an inextricable part of the narrative. However,
the trial judge was required to tell the jury that
it could not be used to support an inference of
guilt. This failure by the trial judge was highly
prejudicial and a significant error. The appeal
ordering a new trial was dismissed.
Complete case available at www.scc-csc.gc.ca

LET IT FLOW, LET IT FLOW,
LET IT FLOW
R. v. Atlas, 2005 BCPC 0456
Police attended an apartment
building composed of privately
owned suites after receiving a
complaint from an occupant that

Volume 5 Issue 6
November/December 2005

a noise was heard and there was now a water
leak. The police spoke with the occupant and
determined that the noise and water leak,
evidenced by seeping water through the ceiling,
had come from the suite above the complainant.
The officers attended to the floor above and
located the suite where a significant amount of
water could be seen coming from under the door
of the unit. The police knocked but received no
reply. As the caretaker tried to open the door
with the master key a voice was heard from
inside state, “There is nothing wrong here, go
away.” Given the circumstances, the officer was
concerned with public safety and that someone
could be harmed inside the suite. Wanting to see
what was going on; the police entered and
searched all the rooms in the suite.
During a voir dire in British Columbia Provincial
Court the trial judge concluded the police were
not entitled to make the warrantless entry.
Although the police officer acted in good faith,
the entry and search was a serious s.8 Charter
breach. In holding the entry unreasonable,
Justice Galati stated:
In my view, these circumstances do not
justify a warrantless entry of a private
residence, particularly where the occupant
has denied entry, as the occupant here, or
one of the occupants here did. I accept that
[the officer] believed that he should enter to
see what was going on, but there was no
sufficient objective basis to support a
concern for public safety. The escape of
water from an apartment might be nothing
more than a plumbing problem. The police
cannot enter a private dwelling where there's
no sufficient objective reason to believe that
entry is necessary to protect the safety of
the public, which in most cases, in my view,
will not include circumstances where there is
potential for damage to property. [para. 6]

The evidence (which was not identified in the
judgment) was inadmissible in the undisclosed
charges.
Complete case available at www.provincialcourt.bc.ca

www.jibc.bc.ca

13

GROUNDS FOR IMPAIRMENT
‘BLINDINGLY OBVIOUS’
R. v. Bounds, 2005 BCPC
A police officer approached the
driver of a vehicle that rearended a stopped police car in a
very well-marked Counterattack
roadblock program. The driver
appeared unable to place her vehicle into park
and when the police officer spoke with her,
there was a strong smell of liquor on her breath
and her speech was slurred. At this point the
officer formed the opinion that the driver was
impaired by alcohol.
At trial in British Columbia Provincial Court the
accused argued, in part, that the officer did not
have reasonable and probable grounds upon which
to form an opinion the accused committed an
offence. Justice Antifaev, however, disagreed.
She said:
Defence counsel says that that constellation
of factors is insufficient on which to base the
making of a breathalyzer demand, and I have
to respectfully disagree with that submission.
In my view, any reasonable person faced with
that constellation of factors would leap to
what is surely a blindingly obvious conclusion in
the circumstances, based on those factors
alone, without more, that this is a driver who
has been drinking way too much alcohol to be
driving.
I am putting it in a very colloquial manner here,
but it is quite clear, I think, that, in my view,
even based on the limited number of factors
that the officer initially committed herself
to…she certainly did, in my view, have not only
a subjective belief, but there were objectively
present enough factors to support the making
of a demand. I am satisfied that she did have
reasonable and probable grounds to make the
demand. [paras. 6-7]

The breathalyzer certificate was therefore
admissible.
Complete case available at www.provincialcourt.bc.ca

14

SEARCH OF OUTBUILDING
PROPER AS INCIDENTAL TO
ARREST
R. v. Johnson, 2005 BCPC 0432
The police applied for and were
granted a tele-warrant to
search a house for a marihuana
grow operation. The initial
application requested a search
of both the residence and an outbuilding.
However, the justice crossed out any
authorization to search the outbuilding. The
warrant was executed and police found a
marihuana grow operation in the house and a
loaded SKS semi-automatic rifle in a bedroom.
The accused and another occupant were
cooperative. The police then attended to the
outbuilding and heard a television or radio noise
inside. For officer safety reasons, given the rifle
found at the house, officers wanted to search
the outbuilding to see if anyone was inside. The
police entered and found no one inside, but did
discover a psilocybin grow operation. The
accused was charged with offences relating to
growing marihuana and psilocybin.
During a voir dire in British Columbia Provincial
Court the accused argued, in part, that the
police violated his s.8 Charter right by searching
the outbuilding when the warrant did not
authorize its search. Although warrantless
searches are presumptively unreasonable and a
violation of s.8, a search properly conducted as
an incident to lawful arrest is an exception to
the presumption. As Justice Smith noted, “the
police had no right to enter the outbuilding
unless there was a legitimate need to enter it
for officer safety reasons incidental to the
arrest of the accused at the residence.” In
finding the search in this case justified, the
court stated:
The search warrant was clear that it did not
authorize entry into the outbuilding. Were
exigent circumstances present for officer

www.jibc.bc.ca

Volume 5 Issue 6
November/December 2005

safety once the loaded gun was found in the
residence, given the radio was still playing in
the outbuilding? …In the case at bar the out
building was fairly close to the residence. I
find that the locating of the loaded semiautomatic rifle in the residence, coupled with
the continued playing of the radio in the
outbuilding, did create exigent circumstances
for the need to sweep the out building for
officer safety. I find that the sweep of the
outbuilding was a lawful search incident to the
arrest of the accused and not in breach of his
section 8 Charter rights. [para. 22]

The evidence was admissible.
Complete case available at www.provincialcourt.bc.ca

PRE-CHARGE CONDUCT
ADMISSIBLE IN CRIMINAL
HARASSMENT CASE
R. v. D.D.,
(2005) Docket: C41160 (OntCA)
The accused called the victim,
with whom he had had a short
relationship eight years earlier
that produced a daughter, and
yelled at her because her new boyfriend was
parked in the victim’s driveway. He also told the
victim he wanted to take their daughter to
school but this request was refused. The
telephone call ended and the accused
subsequently appeared on the victim’s doorstep.
The victim went outside and met the accused.
The accused complained of the victim having sex
with her boyfriend while their daughter was in
the house, yelled at the victim while an inch from
her face, refused to leave and banged on the
door demanding the boyfriend come outside. The
victim pushed the accused away from the door so
she could get back inside the house and the
daughter called 911, but the accused left.
At trial in the Ontario Superior Court of Justice
on a charge of criminal harassment, the Crown
tried to enter evidence of six prior incidents to

Volume 5 Issue 6
November/December 2005

help prove the following elements of the
offence:
• whether the accused’s conduct caused the
victim to fear for her safety;
• whether the accused was aware or reckless as
to the fear his conduct may have caused; and
• whether the victim’s fear was objectively
justified.
The trial judge considered each of the six prior
incidents independently and ruled them
inadmissible because the prejudicial effect in
allowing the evidence of bad character
outweighed its probative value. The Crown
submitted that an acquittal be entered since the
evidence of the most recent incident, by itself,
would not prove a charge of criminal harassment.
An acquittal was entered, but the Crown then
appealed to the Ontario Court of Appeal arguing
the evidence of the prior incidents was not
submitted to demonstrate propensity, but rather
to show the effect of the accused’s behaviour on
the victim during this most recent incident and
whether the accused had an awareness
(knowledge or reckless inadvertence) that the
victim was afraid of him.
Justice MacFarland, authoring the unanimous
appeal court judgment, agreed with the Crown.
Pre-charge conduct in cases of criminal
harassment is admissible for the purposes of
determining whether the victim feared for their
safety and whether that fear was reasonable
(objectively
justifiable)
in
all
of
the
circumstances.
Furthermore,
pre-charge
conduct is also useful in assessing whether the
accused knew that his conduct would cause fear
or whether he was reckless as to whether or not
the victim was fearful. As a result, the court
ruled that the trial just misapprehended the
probative value of the evidence and a new trial
was ordered.
Complete case available at www.ontariocourts.on.ca

www.jibc.bc.ca

15

PAT DOWN SEARCH OF
DETAINEE REASONABLE
R. v. B.A.D.G., 2005 BCPC 0504
Shortly after midnight police
responded
to
a
reported
residential break and enter
involving four masked men with a
baseball bat. The suspects were described as
very wet, dark skinned, Indo-Canadian males in
their twenties, one over six feet tall, who fled
down a back lane. Police set up containment and
two young males were seen coming out of a dark
lane about seven blocks from the break and
enter. Both males were soaking wet, one was over
six feet, and one was pushing a bicycle. The
officer identified himself and told the men that
they were under investigation for a break and
enter in the area.
Other officers arrived and the accused, wearing
a puffy vest and bandana around his neck, was to
be pat frisked for safety reasons. He was asked
whether he had anything sharp. He said he had a
knife and began to move his hand toward the
back of his waist. An officer said no, grabbed
the accused’s waist, and handcuffed him. The
officer then patted the accused’s waist down
and found a knife tucked into his trousers under
his vest. After a further pat down the officer
felt something hard in the accused’s vest pocket.
This item was removed and found to be keys to
the residence which was broken into. The
accused’s bandana was also seized because it was
similar to the description of the masks used by
the suspects. Minutes after the stop the
accused was arrested for carrying a concealed
weapon and given his s.10(b) Charter rights.
At his trial in British Columbia Provincial Court
on charges of carrying a concealed weapon, break
and enter, theft, and possession of stolen
property, the accused argued that he was
arbitrarily detained, unreasonably searched, not
properly advised of his rights, and that the
evidence should be excluded under s.24(2) of the

16

Charter.

The Crown, on the other hand,
submitted that there were no Charter breaches
and that even if there were, the evidence was
nonetheless admissible under s.24(2).
Judge Ehrcke concluded that the test for
investigative detention had been satisfied. She
stated:
Both officers has reasonable grounds to
suspect the accused was connected to the
break and enter and that his detention was
necessary. It was late at night, the two males
stopped were young, they were soaking wet,
they had come from a laneway seven blocks
from the residence, there was no one else
around, and it was not long after the police
dispatch had been broadcast. Although [the
officer] testified that she would have stopped
anyone in the area remotely matching the
description of the perpetrators, this
detention must be evaluated on its own merits.
[The officer] had reasonable grounds to
conduct a protective pat down search, based
on the circumstances. Again, it was late at
night. The alleged offence was serious – it
involved entering an occupied home. The police
information was that the perpetrators were
masked. Unlike in Mann, the object in the
accused’s pocket was hard, not soft. The
officer was entitled to check it, especially
after she knew the accused had a concealed
knife.
Another factor in this case is that once the
[the officer] found the knife, she had grounds
to arrest the accused. She did not do this
immediately, but it would have justified a
search incident to arrest.
The manner of search was reasonable. It was
a pat down search only.
The seizure of the bandana was justified. By
the time this was done, the officer had
information that it was similar to the masks
worn by the perpetrators. [paras. 26-30]

There were no Charter violations and the
evidence was admissible.
Complete case available at www.provincialcourts.bc.ca

www.jibc.bc.ca

Volume 5 Issue 6
November/December 2005

FLIGHT FROM POLICE
REQUIRES CONSECUTIVE
SENTENCE
R. v. Prymak, 2005 ABCA 377
The 27 year old accused was
convicted of dangerous driving
and flight from police after he
led police on a 43 minute high
speed chase on country roads, through a village
and along a highway. He drove at speeds as high
as 155 km/h, failed to stop at stop signs, drove
the wrong way down a one way street, swerved
on the roadway, and encountered other vehicles
and pedestrians along the way. Once he was
boxed in by pursuing police units the accused and
his passenger fled on foot. The car had many
empty and full beer cans inside and the accused
admitted that he had been drinking.
He had a dated criminal record (driving over 80
mg% x 2) and five speeding convictions on his
driving record. He was sentenced to 90 days in
jail, placed on probation for two years, and given
a two year driving prohibition. At sentencing the
judge questioned the decision of the police to
chase the accused and found this to reduce his
moral blameworthiness, a mitigating factor in
sentencing.
The Crown appealed to the Alberta Court of
Appeal arguing the sentencing judge made a
number of mistakes and the sentence handed
down was demonstrably unfit. Citing an earlier
Alberta Court of Appeal decision (R. v. Roberts,
2005 ABCA 11), Justice Picard noted:
Parliament intended the flight crime to be
dealt with as a serious, aggravated criminal
offence. It is an offence potentially very
dangerous to the public, the moral turpitude is
great, and there can be no deterrence unless
the penalties equal or exceed those for the
pre-existing offence whose detection or
prosecution is being fled. Deterrence and
denunciation are paramount considerations in
sentencing for this crime. [para. 7]

Volume 5 Issue 6
November/December 2005

Furthermore,
Roberts
requires
that
a
consecutive sentence be imposed for flight from
police. In this case, the aggravating factors were
many; driving after drinking alcohol, the offence
was potentially very dangerous, and the moral
turpitude was great. The sentencing judge also
erred in reducing the accused’s moral
blameworthiness because the police decided to
chase. On the other hand, the mitigating
circumstances included the accused’s age, family
support, a good employment record, and a young
family he was responsible for supporting.
The 90 day sentence imposed did not give
sufficient
weight
to
denunciation
and
deterrence. Therefore, the appeal was allowed
and the accused was sentenced to six months
incarceration for dangerous driving and six
months incarceration for the flight consecutive.
Applying the globality principle an overall
sentence of nine months was imposed.
Complete case available at www.albertacourts.ab.ca

FINGERPRINT NOT ENOUGH
R. v. Yonkman, 2005 BCCA 561
After breaking into a home the
suspects fled in a Jeep that was
first pursued by a neighbour,
then by police. The police chase
was called off and the vehicle
was later found abandoned less than two hours
after the break-in. Three sets of fingerprints
were found on the vehicle, including the
accused’s thumb and palm print on a rear view
mirror located on the passenger’s side floor. As
well, the broad description of the vehicle’s
driver as seen by the pursuing officers was not
inconsistent with the accused’s appearance.
The accused was convicted in British Columbia
Provincial Court of break and enter. The judge
was satisfied beyond a reasonable doubt that
the accused’s presence at the break-in was
established by his fingerprints found on the
mirror. The accused appealed his conviction to

www.jibc.bc.ca

17

the British Columbia Court of Appeal arguing the
judge’s verdict was unreasonable because the
evidence did not prove beyond a reasonable
doubt he was present when the crime was
committed.
Justice Lowry, authoring
judgment, agreed. He wrote:

the

unanimous

And further:

The judge gave no explanation as to why the
presence of [the accused’s] fingerprints on
the mirror proved beyond a reasonable doubt
that he was at the residence when the breakin occurred. If, as I understand, it is
accepted that the mirror was the mirror that
was missing from the windshield mount in the
Jeep, [the accused’s] fingerprints on it
proved that [the accused] had been in the
Jeep at some time. But the question is
whether the evidence proves to the standard
required in a criminal case that [the accused]
was in the Jeep at the time it was at the
residence. It appears to me the judge did
not focus on the distinction.
This being a purely circumstantial case, the
conviction can be sound only if it was open to
the judge to conclude, beyond a reasonable
doubt, that the evidence as a whole was
consistent with [the accused] being in the
Jeep at the residence and inconsistent with
any other rational conclusion… This Court has
recognized that, in a case of this kind,
fingerprint evidence may be sufficient to
support a conviction, but the court must be
satisfied on the evidence as a whole that the
fingerprint was not left by the accused where
it was found at some time other than when
the crime was committed… There must be a
temporal connection between the fingerprint
being left and the commission of the crime.
The frailty in the Crown’s case is the lack of
any evidence that would establish that [the
accused’s] fingerprint on the mirror was left
there when the Jeep was being driven to or
from the residence as opposed to some
earlier time. The Crown did not establish how
long [the accused] had access to the Jeep.
Apart from the fact that the ignition
appeared to have been tampered with, there
was no evidence as to whether the Jeep had

18

been stolen, and, more particularly, if it had,
when that had occurred. There is on the
evidence then no reason why [the accused’s]
fingerprint could not have been left on the
mirror days, weeks, or months before the
crime was committed. [references omitted,
paras. 8-10]

There was a complete lack of evidence to
support the temporal connection necessary to
inferring that, because [the accused’s]
fingerprints were found on the mirror, he was
in the Jeep when it travelled to and from the
residence where the crime was committed.
[para. 14]

The appeal was allowed and the conviction was
set aside.
Complete case available at www.courts.gov.bc.ca

ACTUAL ADVANTAGE NOT
NECESSARY FOR
PERSONATION
R. v. Boyle, 2005 BCCA 537
The accused acquired a birth
certificate in the name of a
deceased person and then
applied for and obtained a social
insurance number and BC Identification card.
He then used these documents to acquire a BC
learner’s driver’s licence in the deceased’s name.
He also opened a bank account and postal box.
At trial on a charge of personation under
s.403(a) of the Criminal Code the accused’s
criminal and driving records were entered as
evidence to show proof of motive.
Section 403(a) states that a person commits an
indictable offence “who fraudulently personates
any person, living or dead, (a) with intent to gain
advantage for himself or another person.” He
was convicted when the trial judge found that it
did not matter than it was not proved that he
utilized the false identity to further a crime. In
the trial judge’s view the accused fraudulently

www.jibc.bc.ca

Volume 5 Issue 6
November/December 2005

obtained the “false identity to make his past
disappear and he thereby gained advantage.”
The accused appealed to the British Columbia
Court of Appeal arguing, in part, that the Crown
did not prove he used his false identity to gain
any advantage that he could not have obtained
under his own name. Justice Hall, authoring the
judgment for the unanimous court, disagreed.
He stated:
I am of the view that, if anything, the
approach of the trial judge in this case was
more favourable to the [accused] than was
warranted. The trial judge held that the
[accused] had gained an advantage by being
able to adopt a new identity. However, it was
only required for a conviction to be
registered that the judge find that the
[accused] had the intent to gain an advantage
by personating someone else. The judge's
finding that the [accused] gained an
advantage seems to me to be a clear
indication that the judge was of the opinion
that the [accused] had the necessary intent
mandated by the section of the Criminal
Code, namely having an intent to obtain an
advantage by adopting the false identity of
the deceased person…. It seems to me that
the obtaining here of a new identity was in
and of itself an advantage. While it is true
that the learner's licence [the accused]
obtained had restrictions on it that his own
licence did not have, it was certainly an
inference open to the judge that the
[accused] intended to obtain a licence
document that would enable him to pass
himself off as someone without a prior driving
record. Likewise, the obtaining of this
document plus the other documentation, the
social
insurance
number
and
the
B.C. identification card, opened up a panorama
of possibilities to the [accused], a panorama
untrammelled by the existence of the
criminal or driving record in his name. As the
judge observed, it would be a way of “making
his past disappear.
It is true that the [accused] did not obtain
any money, nor did he avoid arrest by using
the identification he had obtained in the

Volume 5 Issue 6
November/December 2005

name of [the deceased] …but as I said, in my
opinion the judge made no error in finding
that, based on his actions and his history
(which could furnish a motive), the Crown had
proven on all the evidence that the [accused]
had demonstrated the necessary intent to
gain by personation an advantage for himself,
the very thing prohibited by the statute. The
fact that he came to the attention of the
authorities before he was able to obtain any
particular monetary or other advantage does
not afford a defence to the charge of which
he was convicted. [references omitted, paras.
8-9]

The accused’s appeal from conviction was
dismissed.
Complete case available at www.courts.gov.bc.ca

BC’s Top 25 Stolen Vehicles

Rank
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Make
Chrysler
Honda
Chrysler
Honda
Toyota
Jeep
Nissan
Ford
Chrysler
Dodge
Acura
Plymouth
Chrysler
Nissan
Plymouth
Honda
Nissan
Ford
Toyota
Ford
Dodge
Chevrolet
Chrysler
Nissan
Oldsmobile

Model

Years at most risk

Voyager/Caravan

92, 93, 94, 95
92, 93, 95, 98, 00
95, 96, 98, 00
88, 90-92, 94
87-90
89, 93-95
91, 92, 93, 95
00, 01, 02, 03, 04
94, 95, 96, 99, 00
91, 92, 93, 94, 00
90, 91, 94, 95
90, 91, 92
90, 91, 92
89, 90, 92
91, 92, 93
86, 88
90, 91, 92
88, 89, 90
88, 89
91, 94, 97
91, 92
89, 90
90, 91
87, 88
90, 91

Civic
Neon
Accord
Camry
Cherokee
Pathfinder
F350
Intrepid
Dakota
Integra
Acclaim
Dynasty
240SX
Sundance
Prelude
Sentra
Mustang
4Runner
Explorer
Shadow
Cavalier
LeBaron
Pulsar
Cutlass

Source: www.icbc.com [accessed November 29, 2005) This list records
the make and model of vehicles stolen in British Columbia from January 1
to December 31, 2004

www.jibc.bc.ca

19

to jog, bike, or roller blade along Vancouver’s
famous Seawall.

2006 POLICE LEADERSHIP
CONFERENCE
APRIL 10-12, 2006

To date, Police Leadership 2006 has confirmed
the following presenters:

Lieutenant-General Roméo Dallaire
Coming soon!!! The British
Columbia Association of Chief's
of Police, the Ministry of Public
Safety and Solicitor General
and the Justice Institute of
British Columbia will be hosting
the "Police Leadership 2006 Conference" April
10 to 12, 2006 at the Westin Bayshore in
Vancouver, British Columbia. This is Canada’s
largest Police Leadership Conference and was
sold out in 2004 with more than 600 delegates
attending.
Leadership in policing is not bound by position or
rank and this conference will provide delegates
from the police community with an opportunity to
explore a variety of leadership areas. Police
Leadership 2006 will bring together experts who
will provide current, lively, and interesting topics
on leadership. This carefully chosen list of
speakers will provide a first class opportunity at
a first class venue to hear some of the world’s
outstanding
authorities
on
leadership.
Therefore, early registration is encouraged so
you do not miss out on this great opportunity.
Beautiful downtown Vancouver will provide the
backdrop for the Police Leadership 2006
Conference. The host hotel, the Westin
Bayshore Resort and Marina, offers state of the
art facilities, excellent accommodation rates,
and promises to be an enjoyable venue for the
conference. The Westin is located on the shores
of Coal Harbour, overlooking Stanley Park, and is
a short walk to the
downtown’s business
district,
shopping,
and entertainment.
Or you may choose

20

O.C., C.M.M., M.S.C., C.D. (Retired)

Stephen Covey

Author, The 7 Habits of Highly Effective People

Richard Boyatzis

Author, Primal Leadership

Rick Dinse

Chief of Police, Salt Lake City Police Department

John King
Assistant Chief of Police, Montgomery County
Department of Police

Eddie Compass
Former Chief of Police, New Orleans Police
Department

Conference Registration
The registration fee for the Police Leadership
2006 Conference is $385 CDN (plus GST) if you
register before March 5, 2006. The conference
fee for registrations received AFTER March 5,
2006 will be $425 CDN (plus GST). The
registration cut off date is April 5, 2006.
The conference fee includes a reception on
Monday evening, lunches on Tuesday and
Wednesday, and a banquet dinner on Tuesday.
Each participant will receive a "welcome package"
upon registration. Register early, as the number
of delegates is limited and past conferences
have sold out prior to the registration cut-off
date.
Conference attire is business casual.

For more information visit

www.policeleadership.org

www.jibc.bc.ca

Volume 5 Issue 6
November/December 2005